R. v. Moran, 2019 BCPC 66

Citation: R. v. Moran 2019 BCPC 66 Date: 20190405 File No: 26974-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARRYL VINCENT MORAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. WHYTE Counsel for the Crown: Oliver Fleck Counsel for the Defendant: Ken Thomson Place of Hearing: Quesnel , B.C. Date of Hearing: March 8, 2019 Date of Judgment: April 5, 2019 A Corrigendum was released by the Court on April 16, 2019.

The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] Darryl Vincent Moran stands charged that on or about the 18 th day of November 2017, he drove a motor vehicle while prohibited. A Statement of Admissions filed as Exhibit 1 in the proceedings, includes the acknowledgment that Mr. Moran was operating a motor vehicle on the day in question, and further that he was aware that he was bound by a driving prohibition at the time. [ 2 ] Mr. Moran admits the essential elements of the offence. However, he relies on the defence of necessity as a legal excuse to the charge.

He asserts that, due to circumstances that presented at the time of driving, he had no choice other than to operate a motor vehicle.

[ 3 ] The Crown submits that the defence of necessity is unavailable to Mr. Moran. Necessity, it was argued, cannot form a blanket defence to a prohibited act. An accused person must demonstrate that they took all reasonable steps to avoid violating the law. The Crown argues that Mr. Moran had options available to him that would have precluded the need to drive, but he did not consider these options. In the circumstances of this case, it is argued by the Crown that the test for the defence of necessity is not made out, and Mr. Moran ought to be convicted.

SUMMARY OF EVIDENCE [ 4 ] Cst. Visser of the Quesnel RCMP was the only witness for the prosecution. At the time of the incident, she was an 11 year veteran of the RCMP. She had been posted to the Quesnel detachment since 2014, and was working as a General Duty officer. [ 5 ] Cst. Visser testified that, on November 18, 2017 she was operating a vehicle roadcheck on Elliot Street, northwest of the Moffat Bridge in Quesnel, BC. She was checking driver’s licenses, and looking for motor vehicle infractions and impaired driving offences. She said Mr. Moran approached the roadcheck location from the north.

Upon seeing the vehicle, she noted it to be driving slowly, approximately 5 km/h from a far distance. [ 6 ] When Mr. Moran’s vehicle arrived at the checkstop, Cst. Visser noted a male driving (admitted to be Mr. Moran) and a male in the front passenger seat. She asked Mr. Moran for his license; Mr. Moran said he did not have a license. He provided a BCID card, and Cst. Visser was able to satisfy herself that she was dealing with the individual in the picture. [ 7 ] Cst. Visser performed indices checks and confirmed that Mr. Moran did not possess a license.

He was directed to exit the vehicle, and placed under arrest for driving while prohibited. The male passenger provided his identification and upon doing so, was allowed to depart on foot. [ 8 ] Cst. Visser testified that Mr. Moran was unusually talkative and excited during the arrest process. His chief concern, she said, was that his vehicle not be towed. Cst. Visser said Moran told her he had been “jumped” a few days previous; she noted what she believed to be days old bruises on his face, under his eyes. Cst. Visser did not recall seeing any other injuries. [ 9 ] Cst. Visser said Mr.

Moran made vague comments about being threatened by unknown individuals, and that a knife was somehow involved. When asked to clarify, he provided no details. He was asked whether he wished to attend at the RCMP detachment or the hospital, but Mr. Moran reportedly denied both offers. He said he was scared, and under some form of duress. [ 10 ] Mr. Moran was released on scene. He called a friend, who attended and assisted him in moving some belongings from his vehicle. The vehicle was impounded following the stop. [ 11 ] Cst.

Visser confirmed during cross-examination she had no medical training that would allow her to precisely date the age of Mr. Moran’s bruises. She agreed that Mr. Moran told her he had been living out of his car. She agreed that Mr. Moran said he was under some form of duress. She said he did not indicate to her that he had been assaulted that evening, and provided no timeframe for this alleged event. [ 12 ] Mr. Moran testified in his own defence, and was the sole defence witness. At the time of his trial, he was incarcerated on unrelated matters. [ 13 ] Mr.

Moran testified that he had been diagnosed as a child with a variety of psychiatric illnesses, including bi-polar disorder, schizophrenia and attention deficit hyperactivity disorder (ADHD). At various times, he said he took medication for these conditions. He said he believed he was taking medication at the time of the incident. He said these illnesses affected his thinking, and made him feel paranoid. [ 14 ] Mr. Moran testified that, at the time of the incident, he was 21 years old. He had been living at a residence in the Two Mile Flats area of Quesnel.

He was working in Bouchie Lake, an area about a 15-20 minute drive from Quesnel. He had been living at the Two Mile Flats location for only a few weeks, but found it was too far away from his work. [ 15 ] He had met Evan Blum, the boyfriend of his friend Miranda Dumont, some months earlier. Mr. Blum lived in a mobile home at the Riverwalk Mobile Home Park. This location was closer to Mr. Moran’s work, and so he decided to live with Mr. Blum. On the date of the incident, he said he was moving his belongings into Mr. Blum’s residence. Ms.

Dumont had driven in his vehicle from his previous location in Two Mile Flats, along with Mr. Blum. Ms. Dumont left him with Mr. Blum, and returned to her own home. [ 16 ] Mr. Moran said he was moving his belongings from his vehicle into Mr. Blum’s residence at around 11:00 pm. It was dark, but he had the benefit of some moonlight. He was hunched over his trunk, retrieving items, when he became aware of individuals standing behind him. He turned around to ask what they wanted, and took note of two individuals, one of whom was wearing a ski mask, the other wearing a toque.

He said the two began assaulting him with metal objects that he assumed were brass knuckles. He said he was struck in the head several times. One of the wounds to the side of his head began bleeding profusely. He attempted to fend off his attackers, and in doing so grabbed a chainsaw that was on the edge of his trunk. He said he swung the chainsaw, striking one of his attackers. At that point, they disengaged, and left the area. [ 17 ] Mr. Moran said he went into Mr. Blum’s trailer, and tried to calm down. For reasons that are not entirely clear, Mr. Moran began to believe that Mr.

Blum was somehow involved in the attack. He stayed in the trailer for about 30 minutes. He attempted to nurse his head wound, which continued to bleed. He said he was concerned that his attackers would return, and he did not feel safe at the trailer. He said there was no phone or internet connection in the trailer, and so he had no way of contacting emergency services for assistance. Neither he nor Mr. Blum had a cell phone, he said. [ 18 ] Mr. Moran decided that he needed to leave the area. He knew he was unlicensed. He also was aware that Mr. Blum did not possess a valid driver’s license. Despite this, Mr.

Moran and Mr. Blum got into his vehicle and left the mobile home park. They came across Cst. Visser’s roadcheck within a short time after leaving the mobile home park. It is not entirely clear why Mr. Moran would

allow Mr. Blum to accompany him when he believed he might have somehow been involved in the attack. [19] Neither Mr. Blum nor Ms. Dumont testified for the defence. [20] In cross-examination, Mr. Moran said he was unable to discern any identifying characteristics of his attackers. This, he said,was due to the dark conditions and the fact that one was masked and the other had a toque on. [21] He said he did not think to try to contact any of the other residents of the trailer park. He said he and Mr. Blum were theyoungest residents, and he assumed no one would help him.

He said no one would open their doors, even in cases of emergency. He saidhe didn’t yell out for assistance, as he figured it would not help him. [22] Mr. Moran acknowledged he did not tell Cst. Visser many of the details of what had happened. He said he generally didn’t trustpolice, and also did not wish to be seen as a “rat”, or someone who contacts police. He said people who seek out police assistance areoften the victims of further violence, something he said he learned through bitter experience during incarceration, but also in thecommunity in general.

He also said that there was an individual on a bike who watched his interaction with Cst. Visser. He said hebelieved that person was somehow involved, and this caused him to be afraid. Cst. Visser made no note of anyone else being presentduring her interaction with Mr. Moran. [23] Mr. Moran confirmed that he did not attend hospital to deal with his significant injury, as he thought there was little a hospitalcould do to assist him. He eventually did go to a hospital several weeks later, and said he was diagnosed with a head injury.

Indeed, hecomplained of severe symptoms as a consequence of the assault, which included lasting changes to his speech pattern. [24] Mr. Moran said he has requested a neurological assessment while incarcerated, but has been told it could take upwards of a yearfor this to occur. LEGAL FRAMEWORK [25] Mr. Moran argues that the common law defence of necessity applies in his case. He has acknowledged driving his vehicle, andfurther knowing that he was prohibited from doing so.

However, he submits that, in the circumstances, there was no reasonable legalalternative available to him other than to leave the area by driving his vehicle. Burden of Proof [26] Mr. Moran does not have to prove that the defence of necessity is available to him. Once an accused raises the reasonablepossibility that a defence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown isrequired to disprove the defence beyond a reasonable doubt: R. v. Holmes (SCC), [1988] 1 SCR 914 at para. 36; R. v.Deluney [2014] N.J.

No. 295 at para. 31. [27] That is to say, if there is reasonable doubt in the facts I accept as to whether the accused acted out of necessity, he is entitled toan acquittal. [28] A reasonable doubt is not based upon sympathy or prejudice; rather, it is based upon reason and common sense. It is logicallyconnected to the evidence, or absence of evidence. It does not involve proof to an absolute certainty; indeed such proof is rarelyavailable. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt. However, more is required than proof that theaccused is probably guilty.

A judge or jury that concludes only that an accused is probably guilty must acquit: R. v. Lifchus, [1997] 3SCR 20 at para. 36; R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. The Common Law Defence of Necessity [29] The defence of necessity recognizes that, in some circumstances, the doing of a prohibited act is excused on the basis that theurgency of the situation left the accused with no real choice but to commit the act. Their actions are, in a moral sense, considered“normatively involuntary”: R. v. Perka (SCC), [1984] 2 S.C.R. 232 (“Perka”) at pg. 250.

Elements of Necessity [30] The elements of necessity developed in Perka were succinctly restated by the Supreme Court of Canada in R. v. Latimer 2001SCC 1 at para 28: First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to thecourse of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided. [31] A fourth element, contributory fault, has been identified in some cases.

This refers to circumstances where an accused placeshim or herself in a situation where the clear consequence was the emergency which then developed. Contributory fault does not arise inthe circumstances of this case. [32] The first two elements are assessed utilizing a modified objective standard. This requires the court to consider the standard orperceptions of a reasonable person, but taking into account the particular circumstances and frailties of the accused, including his or herability to perceive the existence of alternative courses of action.

The third requirement, proportionality, is assessed solely on an objectivestandard: Latimer at paras. 33-34; R. v. McMichael 2017 BCPC 13 (“McMichael”) at para. 5; R. v. L.S. 2001 BCPC 462 , 2001BCPC 0462 (“L.S.”) at para. 16. [32] Necessity is designed to have circumscribed application. It is reserved for those occasions where a person truly has noreasonable alternative but to commit the prohibited act. Society is justifiably concerned with expanding the availability of any excuse towhat would otherwise be illegal behaviour. This apprehension was expressed in Latimer at para. 27, in reference to Dickson, J.’s

comments in Perka: Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. The defence,he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well established that the defence of necessity must be oflimited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J.,that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v. Williams, [1971] Ch. 734(C.A.), at p. 746. R. v.

W.D. [33] The accused testified in his own defence, and as such, there is a requirement to assess the credibility of his evidence. The casethus engages the analysis discussed in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at page 757. In accordance with W.D., Iconsider the following: FIRST, if I believe the evidence of the accused in support of the defence of necessity, I must acquit. SECOND, if I do not believe the testimony of the accused in support of the defence of necessity, but am left in reasonable doubt by it, Imust acquit.

THIRD, even if I am not left in doubt by the evidence of the accused in support of the defence of necessity, I must ask myself whether,on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. ANALYSIS [34] The main issues to be addressed in this case are as follows: 1. Was Mr. Moran in a situation of imminent harm or peril when he drove his vehicle? 2. Was there any legal alternative available to Mr. Moran other than driving his vehicle? 3. Was the harm occasioned by Mr.

Moran’s decision to drive his vehicle disproportionate to the harm he sought to avoid? [35] Each of these criteria must be present in order for the defence to succeed: Latimer at para. 28. Was Mr. Moran in a Situation of Imminent Harm or Peril When He Drove His Vehicle? [36] Mr. Moran submits that his life was imperiled by the attack. Despite this, he made no mention of the specifics of the assaultwhen he approached Cst. Visser at the roadcheck. Mr. Moran explains this by stating that he also mistrusted police, and was afraid ofthem. [37] Further, Mr. Moran waited approximately 30 minutes before departing Mr.

Blum’s trailer, in a circumstance that he submitswas one of imminent harm. [38] The Crown argues that there was no recent assault, and therefore no imminent threat of harm. Rather, the assault, if there wasone, took place days earlier. The Crown points to Cst. Visser’s assessment of the age of Mr. Moran’s bruises, and the fact that Cst. Visserdid not see any other evidence of injury, recent or otherwise. Additionally, the Crown notes that Mr. Moran did not attend hospital tohave his wounds treated until weeks after the alleged assault. [39] Mr.

Moran reminds the court of the role his particular constellation of mental health issues plays in the modified objectiveassessment mandated at the first stage of analysis. He submits that his appraisal of the situation must be considered through the lens ofdiagnoses for bi-polar disorder and schizophrenia. [40] Mr. Moran tendered no evidence to support the assertion that he suffered from these ailments. However, I find I cannot rule outthe possibility that he has been diagnosed with major mental illnesses.

His subjective assessment of the situation must be considered. [41] Even if I accept that the assault was as described by Mr. Moran, I find I reject his explanation for his actions. Simply put, I amof the view that the urgency engendered by the attack had subsided with the passage of time. Common sense dictates that one reacts toimminently perilous situations with urgent action. Waiting a full 30 minutes before deciding what to do is inconsistent with the conceptof urgency. [42] Even though I disbelieve Mr. Moran’s contention that he faced imminent harm, I find I am left in doubt by it.

I cannot rule outthat, in Mr. Moran’s mind, the delay of 30 minutes before deciding how to respond was reasonable. That is to say, utilizing the modifiedobjective standard, I have reasonable doubt as to the presence of imminent peril or danger. Was There Any Legal Alternative Available to Mr. Moran Other Than Driving His Vehicle? [43] The second requirement for the defence of necessity was described by Bayliff, J. in L.S. at paragraph 12, where she asked: Was there a legal way out? Did the accused have any real choice?

Could he or she have done otherwise than break the law? [44] If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelledby some consideration beyond the dictates of “necessity” and human instincts: Perka at page 252. [45] Mr. Moran testified that he had no internet connection or landline at the trailer, and neither he nor Mr. Blum had a cellulartelephone. Nor did he or Mr. Blum possess a valid driver’s license. He submitted that the only option available was to drive his vehicle to

avoid a continuation or repetition of the assault. [46] The Crown points to the fact that Mr. Moran was present in a populated mobile home park. By his own estimate, there wereapproximately 30 other mobile homes. Despite this, he made no effort to seek the assistance of his neighbours before deciding to drivewhile prohibited. [47] Mr. Moran testified that there was no point in trying to contact any of the other residents of the mobile home park. He said itwas later at night, and his neighbours were mostly older people who didn’t answer their doors.

He said strangers are not going to helpsomeone they do not know, and therefore any attempt to enlist their aid would have been futile. [48] Mr. Moran’s explanation for his decision to drive falls short of what could be considered reasonable. In my view, it was notonly open to Mr. Moran to try this avenue before engaging in the prohibited conduct: it was required of him. [49] Mr. Moran had spent little time in the mobile home park prior to the alleged assault. There was no objective basis for theconclusion that none of the residents would help him.

By his own admission, he did not bother exhausting this avenue of assistance. [50] A half hour subsided between the alleged assault and the decision to drive. There was no evidence that Mr. Moran re-assessedhis circumstances and considered his options. His attackers had not returned to renew the assault. He was, in my view, required toconsider whether other alternatives presented, and to test those alternatives before determining how to proceed. [51] I reach this conclusion following a consideration of Mr. Moran’s personal circumstances, including his particular frailties.

Mr.Moran’s evidence on this point was clear and cogent. He made a decision based upon what appeared to be generally held beliefs he hadabout other people’s willingness to assist in times of emergency. Simply put, he concluded that older people at a late hour would notrespond to pleas for help. [52] I did not detect that Mr. Moran’s stated mental illness played any role in this assessment. He testified in a straight-forward, lucidway, bereft of any suggestion that his views were the product of anxiety, paranoia or mental illness of any kind.

What I did sense was ageneral dismissal of the need to consider this alternative before deciding to drive while bound by a prohibition. This is inconsistent withthe law, as I understand it. [53] Mr. Moran relies upon L.S. in his submission that no other legal option presented itself other than driving while prohibited. InL.S., the accused, a victim of spousal violence, was charged with driving while impaired and driving “over .08”.

At the time, she testifiedthat she was fleeing her violent common law partner. [54] In deciding that the accused was not guilty, Bayliff, J. addressed the particular circumstances of a victim of domestic violence.To that end, the analysis discussed in R. v. Lavallee, (SCC), [1990] S.C.J. No. 36 (SCC) was considered, with regard tothe cumulative effect of a victim’s experiences with her abuser: L.S. at para. 21. It was accepted in L.S. (and Lavallee) that a batteredspouse may be able to predict the onset of violence before the first blow was struck, even if an outsider could not.

In other words, thereasonable expectation of violence based on experience had particular import to the assessment of the reasonableness of the accused’sdecisions. [55] L.S. is distinguished from the instant case on this basis. Although there are some parallels in Mr. Moran’s thinking regarding thelikelihood that his neighbours would help him, neither L.S. nor Lavallee assists his defence. The particular exceptions carved out forvictims of longitudinal domestic violence are not appropriately expanded to encompass circumstances such as those faced by Mr.

Moran.I find that L.S. has little applicability, other than with respect to the basic principles of necessity it outlines. [56] I find ultimately that I reject Mr. Moran’s explanation that he had no reasonable legal alternative other than to drive his vehicle.Further, I find I am not left in reasonable doubt regarding the applicability of the defence of necessity at the second stage of analysis.This is simply not a case where that limited exception applies. Mr. Moran was required to seek out assistance from his neighbours beforeresorting to the prohibited act.

By not even turning his mind to this option, he failed to consider a reasonable legal alternative to driving. [57] Given my conclusion with regard to the second requirement for the defence of necessity, there is no need to assess whether theharm occasioned by the prohibited act was disproportionate to the harm he sought to avoid. [58] Accordingly, I find that the defence of necessity fails, and I convict Mr. Moran of the offence of driving while prohibited. ________________________________ The Honourable Judge Peter D.

Whyte Provincial Court Judge CORRIGENDUM – Released April 16, 2019 [1] In my Reasons for Judgment dated April 5, 2019, the following change has been made: [2] On page 6 at paragraph 32 citations R. v. McMichael 2017 BCPC 13; and R. v. L.S. 2001 BCPC 462 , 2001 BCPC0462 should have been included but were omitted. The paragraph should now read as follows: [32] The first two elements are assessed utilizing a modified objective standard.

This requires the court to consider the standard orperceptions of a reasonable person, but taking into account the particular circumstances and frailties of the accused, including his or her

ability to perceive the existence of alternative courses of action. The third requirement, proportionality, is assessed solely on an objectivestandard: Latimer at paras. 33-34; R. v. McMichael 2017 BCPC 13 (“McMichael”) at para. 5; R. v. L.S. 2001 BCPC 462 , 2001BCPC 0462 (“L.S.”) at para. 16. ______________________________ The Honourable P. D. Whyte Provincial Court Judge